You’ve got the wrong skin colour: IVF stuff-ups and tort liability for loss of genetic affinity

Most of us know Singapore for its excellent airport, excellent food and other diversions.  But a recent decision of Singapore’s Court of Appeal, ACB v Thomson Medical, deserves attention.

The case is noted here.

In this case, a mistake was made in the process of an in vitro-fertilisation procedure involving a Singaporean Chinese woman and her German Caucasian husband.

Mistakenly, the wife’s egg was inseminated with sperm from an unknown Indian donor.

Baby P was born healthy, but with a different skin tone.

The claimant’s affidavit states that the pain and suffering that she suffered as a result, physically, mentally and emotionally, was “beyond words” and was “agonizing” [131].

In Australia and New Zealand, in 2014, nearly 34,000 women underwent nearly 68,000 cycles of assisted reproductive technology (ART), resulting in the birth of 12,875 babies.

With so many ART procedures taking place, it’s inevitable that Australian courts will see claims for loss of genetic affinity as well.

 

Wrongful conception, wrongful birth and loss of genetic affinity claims

Loss of genetic affinity cases are a bit different to the usual claims for wrongful conception and wrongful birth.

In wrongful conception cases, such as negligent sterilisation cases, the breach of duty of care results in the claimant falling pregnant in circumstances when they were seeking professional services in order to avoid doing so.

In other kinds of wrongful birth cases, however, the opposite is the case.  The claimant may have been trying to have a child, but due to the defendant’s breach, the child is born with disabilities in circumstances where, if due care had been shown, the claimant might have had an abortion, or might have avoided having a disabled child because a different IVF embryo would have been implanted.

These are just examples, of course, rather than an exhaustive explanation of wrongful birth claims.

In ACB v Thomson Medical, the claimant claimed the expenses she would incur in raising Baby P, a baby who, by virtue of the lack of genetic affinity with the legal father, would not have been born at all if due care had been shown.

 

Cattanach in the High Court of Australia

In Australia, in the High Court case of Cattanach v Melchior, a majority of the High Court allowed a claim for the costs of bringing the child up, at least until the age of 18 years.

Cattanach was a case where the provider mistakenly failed to investigate and simply accepted the patient’s assurance that her right fallopian tube had been removed when in reality it was still there.

The woman gave birth to a healthy child as a result of the transmigration of an egg from her left ovary to her right fallopian tube.

Following Cattanach, 3 state Parliaments moved swiftly to exclude the costs of upkeep.  In NSW, following amendments to the Civil Liability Act, only the additional costs that arise in caring for a disabled child (who would not have been born at all, but for the defendant’s negligence) can be claimed.

The judgments in Cattanach reflect fundamental disagreements about the nature of the damage suffered by the plaintiffs.

In a negligence claim, proof of damage is an essential element of the claim: it’s not enough merely to show the defendant breached their duty of care.

Justice Gleeson saw the claim for costs of raising and maintaining the child as a claim for a novel form of pure economic loss arising because a parent-child relationship had come into existence [26]-[27].

He didn’t regard the claim as being for economic loss that was consequential upon personal injury (that is, a personal injury taking the form of an unwanted pregnancy), because Mr Cattanach was also a plaintiff.

Overlooking the unwanted physical burden of pregnancy on Mrs Cattanach, and framing the entire claim in terms of pure economic loss, seems remarkable to me, but the deeper point for Justice Gleeson was that he thought Mrs Cattanach’s claim implied that the creation of the parent-child relationship was itself actionable damage.

Whereas in His Honour’s view, that relationship is not primarily financial in nature and is fundamental to society, and assigning an economic value to it is not possible [38].

The majority judges saw things differently.  Justices McHugh and Gummow stated that it was not the relationship or the child that was the damage, but the “burden of the legal and moral responsibilities which arise by reason of the birth of the child” [68].

Their Honours did not accept that the values of respect for human life, the stability of the family unit and the nurture of infant children required courts in Australia to reject a claim for costs of upkeep in circumstances where the child would never have been born but for the defendant’s negligence [76].

 

ACB v Thomson Medical in the Singapore Court of Appeal

The Singaporean case of ACB v Thomson Medical was a bit different, of course, to the High Court case of Cattanach.

Unlike Cattanach, in ACB the claimant was actively trying to conceive.  She wanted a mixed Chinese-German child.  What she got was a mixed German-Indian child.

It had the wrong skin colour.

Singapore is a pretty interesting jurisdiction to run the argument that the lack of genetic affinity, and the differences in physical appearance that followed from this, should be regarded in the eyes of the law as actionable damage or “harm”.

One thing that must be said about the judgment of the Singaporean Court of Appeal is that it is extremely thoughtful and a wonderful example of the judicial craft.

The justices systematically and carefully reviewed caselaw across many jurisdictions – it’s a magnificent case for health lawyers to read in order to come up to speed with wrongful birth claims in common law jurisdictions.

The justices were also honest when it came to making the value choices that they were inevitably required to make.

Ultimately, the court rejected the claim for costs of upkeep for Baby P for the reason that “the duty to maintain one’s child is a duty which lies at the very heart of parenthood, and thus the expenses which are incurred towards the discharge of this estate are not capable of characterisation as a loss” [90].

The court regarded the creation of the parental relationship that arose from Baby P’s birth as giving rise to both financial and non-financial obligations.  The court saw no reason why the financial consequences; that is, the cost of upkeep should be compensable, when the non-pecuniary costs were not [92].  In a poignant passage, their Honours included in these non-pecuniary costs “the hours of lost sleep spent putting [Baby P] to bed; the sorrow and worry endured during a bout of illness; or the simple act of blowing on a spoonful of hot soup before feeding it to her” [91].

If the court were to award damages at all, even for the quantifiable costs of upkeep, it would necessarily mean acknowledging, as actionable damage, aspects of a relationship which is “regarded as socially foundational” [101].

While this as a principled position that a court might reasonably take, I would personally give greater weight to the consequences of such reasoning.  The consequences are to create a zone of immunity where IVF providers don’t have to be answerable for careless conduct.

Denying the costs of upkeep in wrongful birth claims may also exacerbate the economic harm the claimant suffers, especially in circumstances when the claimant was seeking to avoid pregnancy.

 

Loss of genetic affinity

In the second part of its judgment, the Singaporean Court of Appeal went on to explain that the true basis of the claimant’s complaint was the disruption, by negligence, of her desire for a shared genetic link between herself, her husband, and her child [128].

The court concluded that “damage to the [claimant’s] interest in ‘affinity’ is a cognisable injury that should sound in damages” [135].

The court ultimately decided that appropriate compensation would be to award the claimant 30% of the financial costs of raising Baby P, not as costs of upkeep, but as recognition of the interference with her interest in genetic affinity with her child.

Which leads me to say: if it is the social importance, fundamental character or moral integrity of the parental-child relationship that is the basis for denying a claim for costs of upkeep, was it not somewhat odd for the court to nevertheless accept that the absence of a genetic link between the claimant and her child qualified as actionable damage?

Personally, what I find heartening, in fact inspiring, is the way that people can – and do – create families through the sheer force of their love and commitment to each other, irrespective of skin colour or genetic affinity.

We see this with adoption and same-sex families, not to mention second marriages.

These family units are here to stay, and deserve the same measure of protection as families where the heterosexual parents share genetic links.

If awarding damages for the coming-into-existence of an unwanted parent/child relationship is offensive in terms of principle, is it not equally offensive to award damages because the (innocent) child who is the subject of the parental relationship lacks genetic affinity with one of its parents?

 

Appraisal of the decision

The Singaporean Court of Appeal acknowledged that the loss suffered by the claimant was partly the result of a complex mix of biological and social factors, including racial attitudes that might not be praise-worthy.

However, I am puzzled why – if the court was persuaded to take a principled line on the fundamental importance of the family unit by denying a claim for the costs of upkeep – why it didn’t follow that principle through and also reject the claim for damages for loss of genetic affinity.

Families are more than the shared genes between children and their parents.

The “anguish, stigma, disconcertment, and embarrassment suffered by the claimant” [150] in response to the curiosity of others about Baby P’s skin colour might actually be based upon reactions that weaken the family unit, rather than strengthen it.

In summary, I agree with the decision the court reached, but I have reservations about its reasons.

Personally I do not see a claim for costs of upkeep as signalling a disrespect for the value of the family unit, at least when the alternative is to create a zone of immunity within which IVF providers are shielded from the consequences of careless conduct.

If we value families, we need to respect the conditions under which people choose to go into parenthood, especially when they seek to avoid parenthood altogether, and also when they enter IVF arrangements in order to ensure a genetic link with their children.

In recognising an action for loss of genetic affinity, and providing a novel resolution to a claim for wrongful birth,  the Singaporean Court of Appeal was taking a pragmatic path that enabled it both to underscore the fundamental importance of the family unit, while still providing a remedy for the consequences of carelessness in the provision of IVF.

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Donors and recipients of embryos and eggs – what happens when the relationship breaks down?

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Credit: Shutterstock

NSW Health has begun an investigation into allegations published last week by Fairfax media that the recipient of a donated embryo covered up the fact of her successful pregnancy in order to mislead IVF Australia and sever ties with the embryo donors.

Natalie Parker and her husband had three spare embryos left over from previous treatment.  They agreed to make them available to a couple who had been through multiple, unsuccessful IVF cycles.

It was a difficult decision for the Parkers because “those three extra embryos were their genetic offspring, potential siblings for their two young boys…and represented the same hopes and dreams they had for their living children”.

The embryo recipient met Ms Parker on the Embryo Donation Network, a website that “helps you to find the donor or recipient who is right for you”.

Initially both women hit it off.  The recipients agreed to the Parker’s condition for ongoing contact between the two families, and for a relationship between the genetic siblings.

However, after the embryo was transferred, contact between the Parkers and the recipient ceased.

According to Ms Parker, the recipient advised IVF Australia that the two embryos transferred to her were unsuccessful in achieving pregnancy, and that she had begun her period.

A year later, IVF Australia asked the Parkers for instructions about the storage of the last-remaining of the three spare embryos they had donated.

Ms Parker found it odd, if indeed the transfer of the first two embryos had been unsuccessful, that the recipient had not shown any interest in the third embryo, which represented a further chance for her to fall pregnant.

Some months later, Ms Parker tracked the recipient down on Facebook and was shocked to see the photo of a baby boy on the recipient’s page who bore a striking similarity to her own children, and looked to have been born around the time the donor embryos were transferred.

She felt betrayed.

Fairfax media reports that Ms Parker believes the recipient became pregnant with her donated embryo, but chose to cut off all contact, intending to deprive the resulting child of contact with his genetic siblings.

“’I trusted them’, Ms Parker said of the recipients.  “I feel taken advantage of, and incredibly sad that there is a child out there who I helped to create, and who is a part of me and my heritage, who potentially will never know where they came from”.

 

What happens when the relationship between donors and recipients breaks down?

In 2013, more than 12,600 babies were born in Australia as a result of assisted reproductive technology (ART) procedures, including in-vitro fertilisation (IVF),  donor egg, and less frequently, donor embryo.

In New South Wales, the Status of Children Act supports ART procedures by making the “birth mother” of a donated egg or embryo the legal mother, and her husband the legal father.

The Human Tissue Act prohibits trading in tissue.  This means that donors of eggs, sperm or embryos cannot be paid for making donations, although the reimbursement of reasonable expenses is permitted.

When couples who have undergone ART treatment are considering donating spare embryos that are no longer needed for their treatment, they may naturally wish to have some measure of contact with their genetic offspring.

Similarly, if a woman agrees to donate an egg to a woman or couple who need one, commercial incentives are absent.  Egg donors must be willing to undergo an IVF cycle for the sole purpose of helping someone else.

The resulting environment is a competitive one.  Recipients must compete for scarce donors and portray themselves as worthy.  It’s a matter of “please like me”, “please choose me”.  Saying this does not imply any criticism of donors.

According to Fairfax, the incident involving the un-named recipients “raises questions about the lucrative IVF industry’s commitment to ensuring the welfare of all its patients”.

To the extent that this is a criticism of IVF Australia for failing to definitively confirm whether the transferred embryos were successful in achieving pregnancy, it ignores the fact that IVF Australia had no way of “forcing” the recipient to return to IVF Australia, at her own expense, for tests to confirm whether or not the transfer of the donated embryos had failed.

Furthermore, if the result is successful, the recipient will have no further need for the services of the ART provider.  The recipient will be free to seek pre-natal care elsewhere.

Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from the ART provider; after all, pregnancy is the shared goal of both parties.

In this case, however, the recipient evidently wished to be free of the conditions imposed by the embryo donors, which included contact between the genetic siblings.

A recipient who feels this way will obviously need to hide their preferences in order to create the necessary rapport that enables them to be chosen by the donors in the first place.

Fairfax media notes Ms Parker’s strong feelings that it would be in the best interests of the child for him to have ongoing contact with her own children.

The child’s best interests will arise as the key consideration when a court is making a parenting order following the breakdown of a marriage.

In this case, however, the parentage of a child born as a result of a donated embryo is clear: the “birthing parents” are the legal parents.

In my view it is certainly in the best interests of a child born as a result of an ART procedure that they should have the opportunity to make contact with their genetic parents when they reach 18.  What is less clear is whether a genetically-related non-parent should be able to enforce the conditions on which they agreed to donate an egg or embryo – during childhood.

There would seem to be no reason, in principle, why the Family Court could not consider this issue under it welfare jurisdiction.

When exercising its welfare jurisdiction, the child’s interests will be paramount.  It is clear that access rights by genetic parents or enforced contact with genetic siblings would not follow automatically.  It would depend on the Court’s consideration of all the circumstances – assuming, in addition, that the welfare jurisdiction extended to making such orders.

 

Is it an offence to withhold information from an ART provider about a successful IVF pregnancy?

Fairfax reports that the recipient may have breached existing statutory requirements in NSW by providing false information to IVF Australia.

The Assisted Reproductive Technology Act requires ART providers to keep records of “the identity and any other prescribed information about each offspring born as a result of the ART treatment by the ART provider” (s 31(1)(c)).

This duty is further clarified in the Assisted Reproductive Technology Regulations (s. 14) which require the ART provider to keep records of (amongst other things) the name, sex and date of birth of each offspring born following ART treatment provided by that ART provider.

The Act contains an offence provision (s 62) for making a representation that is false or misleading in response to a request for information that (amongst other things) relates to the matters set out in s. 14 above.

This provision attracts a penalty of 200 units, currently $11,000

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